Support of Motion for Summary Judgment, at 13-15.
C. Elements of Defendants' Liability On which There Are Disputes of Material Fact
Dispute Re: Response Costs Incurred
While plaintiff has shown that Geosyntec and Trans Tech have been paid $ 21,128.48 and $ 5,139.50, respectively, as noted in the Court's discussion of plaintiff's standing to bring this action, it appears that the owners, and not plaintiff, incurred these costs. Indeed, plaintiff has been paid $ 11,857.01 for work in responding to the identified contamination. Accordingly, a dispute of material fact exists as to whether plaintiff has incurred response costs.
2. Apportionment of CERCLA Liability
There is a reasonable basis for apportioning CERCLA liability based on the volume of lead each contributed to the Site and based on the divisibility of the Site into two discrete sections: a trap/skeet range, not used by the defendants, and a firing range. As a result, joint and several liability should not be imposed upon defendants. The parties also agree that the proper framework for addressing this issue is set forth in In re Bell Petroleum Servs., Inc., 3 F.3d 889 (5th Cir. 1993). This is not an appropriate case for joint and several liability, and the final determination of each parties' pro rata share of the response costs must be deferred.
The United States also requests that the Court reserve making any determination as to the scope of its CERCLA liability until the property owners' liability is resolved. If the owners are liable under section 107, then In re Dant & Russell, Inc., 951 F.2d 246, 249 (9th Cir. 1991), dictates that this action is a contribution action, with each responsible party, including the owners, bearing its allocable share.
Section § 9613(f) provides that "any person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a)." 42 U.S.C. § 9613(f) (emphasis added). Furthermore, "in resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate." Id. Section 9613(f), therefore, empowers this Court to allocate response costs among defendants, the owners, and any additional parties found to have deposited lead on the property. Because the owners may be liable for a portion of the response costs, it would be improper, indeed impossible, for the Court to determine defendants' liability at this time.
The motion of plaintiff for summary judgment is DENIED; however, the Court finds, pursuant to Fed. R. Civ. P. 56(d), that the following material facts exist without substantial controversy:
1. That the former shooting range of the Parks Estate Property, described in paragraph 2 of the Joint Statement of Undisputed facts, is a "facility" within the meaning of 42 U.S.C. § 9601(9).
2. That there has been a "release" or "threatened release" of a hazardous substance from the Site into the environment.
3. That each defendant is a "responsible party" under 42 U.S.C. § 9607(a)(3), as a person who by contract or agreement arranged for disposal of hazardous substances on the Site.
The motion of defendant United States for judgment on the pleadings is DENIED. Plaintiff is granted leave to amend his complaint, within ten (10) days of this order, by substituting in the property owners. Upon such substitution, plaintiff Kamb is DISMISSED as a party to this action.
The Court GRANTS defendants' unopposed motions for summary judgment with respect to claims two and three.
DATED: November 8, 1994
FERN M. SMITH
United States District Judge